Justice K M Joseph

The Supreme Court has finally restored the Harish Rawat led Congress government of Uttarakhand which was arrogantly dismissed by Narendra Modi and Amit Shah’s BJP on March 27 a day before the Chief Minister under the direction of the state governor K K Paul was to seek a vote of confidence to prove his majority in the wake of nine Congress MLAs, led by former chief minister Vijay Bahuguna defecting to the Congress camp.

Rawat enjoyed a majority on the day he was dismissed and continued to enjoy it till May 10 when eventually the Supreme Court held a special session only to test the strength of Rawat’s party. Yet it took almost two months for the issue to resolve satisfactorily thanks to the deliberate and wilful act of Modi and Shah in attempting to fulfill their agenda of erasing the Congress from the entire country and towards that end bring down even the few Congress governments remaining in a handful of states.

But the Supreme Court decision is not just a slap on the face of the BJP but also an implied indictment of its own act of penalising Uttarakhand chief justice K M Joseph.

If there is one thing that best characterises Prime Minister Narendra Modi and his two-year old regime it is arrogance and intolerance. Intolerance of any criticism, intolerance of any dissent; in effect intolerance of the other. Coming to think of it, it is a typical fascist/ Sanghi trait. Behind that veneer of genial smile, lies searing rage against anyone who thinks or acts differently.

Remember the former Governor of Gujarat, Kamla Beniwal! Unlike many other Congress appointees Kamla Beniwal showed some spunk and refused to be overawed and behave as a rubber stamp of Modi. When Modi who swears by “Na khaoonga, na khane doonga” refused to appoint a Lokayukta in his home state Gujarat for seven years, Beniwal, following the law in letter and spirit and in consultation with the Chief Justice of Gujarat, appointed Justice R A Mehta, a man widely known for his personal integrity, as the Lokayukta, infuriating Modi. Modi tried to overturn her decision judicially and politically but the courts then did not heed his plea, whereupon he so diluted the Lokayukta that the office has no more teeth. But he did not forgive Beniwal and immediately upon assuming office of the Prime Minister, in a vindictive act, first packed her off to Mizoram and then summarily sacked her from there too ostensibly on some cooked up charge of corruption she allegedly indulged in once upon a time as a Congress leader of Rajasthan. Has anyone heard of any proceedings against her anymore? Not necessary. The purpose is served she has learnt to her grief who is the Boss.

Each and every Gujarat cadre police officer from former Gujarat DGP, R B Sreekumar to Sanjiv Bhatt to Rahul Sharma to Satish Verma, whoever stood up to Modi in Gujarat is today paying a heavy price even after some of them decided to quit the service and chose an alternate career.

The latest in the line of Modi’s fire is Uttarakhand High Court Chief Justice K M Joseph. He dared to question the intent of the Centre in imposing President’s Rule instead of allowing a floor test to determine whether the Harish Rawat government had lost majority in the Uttarakhand assembly. So he has been shunted off to Hyderabad to serve the remaining term of his judicial career.

Ironically the penalty for this “insolence” has been handed down to Justice Joseph by the Supreme Court which only the other day appeared to be asserting its autonomy and independence. Every one commended Chief Justice of India Thakur’s brave act in telling a few home truths to the Prime Minister how his government’s dilly dallying in appointing judges is seriously affecting the judicial health of the country. The Prime Minister of course, not one to take any criticism lying down, reacted immediately and out of turn too, for he was not slated to speak at the all India conference of Chief Justices and chief ministers, held in the national capital last week. He reminded how the judges religiously guarded their one month long vacation and would not brook any curtailment. The Chief Justice too did not seem intimidated and rose to tell the Prime Minister that “We spend that time not in vacationing in Manali but writing our judgements.” So the impression was conveyed that the Indian judiciary was really independent and would not be dictated upon by the executive. But this did not last long.

As noted Supreme Court lawyer Indira Jai Singh pointed out in the light of the Joseph episode, the so called independence of judiciary appears doubtful. Last year the Supreme Court threw out the National Judicial Appointments Commission (NJAC) Act on the ground that it interfered with the independence of the judiciary and the Constitutional guarantee of separating the powers of the executive from the judiciary, because the composition of the proposed commission included members of the executive as well. This judgment was welcomed by most people and activists upholding the cause of Democracy.

However Indira Jaisingh concedes that, “Events that have transpired since then have created a doubt about the system of vesting this power exclusively in the hands of Judges. It seems like we are getting into the proverbial dilemma of choosing between the devil and deep sea. Rather, what they demonstrate is that the choice between the executive and the judiciary is one between the devil and the deep sea. Or even more significantly what is now clear is that there is a consensus between the executive and the judiciary about who to appoint as a judge and who to transfer. There is indeed no conflict or any great disagreement there.”

She noted how the executive has controlled the appointment and transfer of judges through two smart moves. One, the Memorandum of Procedure, whereby the Government lays down the procedure for appointment or transfer of judges. The second was the government decision to retain the power to disapprove of or strike down a proposal made by the Collegium on grounds of “national interest”. Curiously in a belated reaction to Jaisngh’s denunciation, the Chief Justice has written to the Government objecting to the Memorandum of Procedure.

The first victim of these sweeping powers retained by the executive, was Gopal Subramaniam whose name was recommended by the Supreme Court collegium along with three others including Rohintan Nariman as the apex court judge, as also the elevation of Arun Kumar Mishra and Adarsh Kumar Goel as the chief justices of the Calcutta and Orissa High Courts respectively, in June, 2014 less than a month after Modi government assumed office on May 26. Gopal Subramaniam was the prosecution counsel in the Parliament attack case which proves that per se he was also no flag waving leftist or Congress sympathiser though he had served as additional and then solicitor general under the UPA government as well.

In the UPA Government the then Shipping Minister T R Baalu had accused Subramaniam of deliberately spoiling the case of Sethusamundram canal project, a dream project of his DMK party, because of his proximity to the BJP. But what is little known to the outside world is the tremendous professional rivalry between Finance Minister Arun Jaitley, himself a leading legal practitioner when not in the Government and Subramaniam. Jaitley often times openly mocked Subramaniam.

Returning to the subject, Joseph is perhaps the third judge to be struck off for dissenting with the Government. We have already mentioned above how Modi rendered Justice R A Mehta toothless as the state’s Lokayukta because Mehta’s integrity was widely known.

Then there was Justice Rajiv Shakhdher of Delhi High Court who was summarily transferred out to Madras High Court last year soon after he struck down the Central Government’s act in offloading from a flight Greenpeace activist Priya Pillai who was flying to London in January, 2015 to address the British All-Party Parliamentary Group for Tribal Peoples chaired by Martin Horwood looking at the role of Essar Power, a British company whose project intended to transgress upon the rights of tribals inhabiting Madhya Pradesh forests. Eminent jurists have protested the transfer of Justice Shakhdher but the Supreme Court has remained unmoved. There appears to be no other explanation except the fear of earning the wrath of the Prime Minister.

Similar fate befell Justice Abhay Mahadeo Thipsay of the Bombay High Court who was bundled off to Allahabad High Court against his wishes with less than a year left for his retirement giving rise to speculation in legal circles of alleged collusion between the Government and the Collegium that the judges of even high courts can enjoy their tenure only at the pleasure of the Government of the Day. And this is a Government led by a party, the BJP and even more specifically Prime Minister Modi, who never tires of repeating Ad Nauseaum the excesses of 1975 Emergency.

Back to Joseph, it is ironical that after much humming and hawing for almost a month, the two judge bench of the Supreme Court virtually put its stamp of approval on the Uttarakhand High Court order of April 22 which had struck down President’s rule, and also disallowed nine Congress MLAs who defected to the BJP, from voting in the vote of confidence. So the apex court has in effect conceded that the Uttarakhand High Court judgement was sound in law and jurisprudence.

And what else could they do? After all a nine judge bench of the Supreme Court had in the Bommai case in 1994 while severely criticising the imposition of President’s rule in Karnataka by invoking Article 356 of the Indian Constitution, clearly enunciated that a trial of strength in the legislative assembly is the only place and manner to establish the strength of any elected government.

Bihar threw up a hung House in the elections to the state assembly held in February, 2005 and none of the parties were in a position to form a government. Therefore in May 2005, the then Governor Buta Singh recommended to the Centre imposition of President’s rule in the state. But even in that hung assembly situation, the Supreme Court admonished Buta Singh. But by then the assembly had been dissolved and fresh elections ordered which brought back the NDA government led by Nitish Kumar with a thumping majority. Then the same BJP leaders went to town seeking the Governor’s resignation and even subtly suggesting that the then President A P J Abdul Kalam act against the then Prime Minister Manmohan Singh.

But this time neither the Prime Minister nor the President has come to any grief. It is the Chief Justice of Uttarakhand who had to pay the price and for what? For upholding the Constitution and the rule of law.